Defendant waived Miranda STATE v.
FRANK A. FIORELLI,
Defendant-Appellant.
_____________________________
Submitted March 2, 2020 รข€“ Decided June 19, 2020
Before Judges Rothstadt and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 15-10-0144.
Michael Chazen, attorney for appellant.
RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4167-17T3
PER CURIAM
Defendant Frank Fiorelli appeals from an April 27, 2018 judgment of
conviction that was entered after he first pled guilty to fourth-degree
endangering the welfare of a child (possession of child pornography), N.J.S.A.
2C:24-4(b)(5)(b), and then, after a bench trial, was found guilty of third-degree
resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a). Prior to pleading guilty to the one
charge, the trial judge denied defendant's suppression motion in which he argued
that the search warrant issued prior to his arrest was stale. After pleading guilty,
and before his bench trial, the judge also denied defendant's motion to suppress
his custodial statement to police. In that motion, defendant argued that there
was no evidence he waived his Miranda1 rights.
On appeal, defendant raises the same arguments and also contends there
was insufficient evidence to support his conviction for resisting arrest.
Specifically, he argues the following:
POINT I
THE TRIAL COURT ERRED IN NOT
SUP[P]RESSING THE SEARCH WARRANT WHICH
WAS STALE GIVEN THE TIME THAT HAD
EXPIRED.
POINT II
THE TRIAL COURT ERRED IN NOT
SUP[P]RESSING DEFENDANT'S STATEMENT
GIVEN THAT HE NEVER WAIVED HIS MIRANDA
RIGHTS.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
A-4167-17T3
2
POINT III
THE TRIAL COURT'S VERDICT AFTER A BENCH
TRIAL THAT DEFENDANT RESISTED ARREST
WAS AGAINST THE WEIGHT OF THE EVIDENCE
(NOT RAISED BELOW).
We are not persuaded by any of defendant's contentions and affirm,
substantially for the reasons expressed by Judge John M. Deitch in the written
decisions he issued denying defendant's motions, and setting forth his findings
of facts and conclusions of law after defendant's trial.
I.
In September 2012, Special Agent Joseph Gronczewski of the Federal
Bureau of Investigation (FBI), and Police Detective Christopher Camm, of his
department's Digital Technology Investigations Unit (DTIU),2 conducted an
ongoing investigation into twenty-three individuals believed to be involved in
observing, downloading, and sharing child pornography through the Internet.
Defendant, a former police officer, a former corrections officer, and a retired
captain of the local fire department, was one of the suspects. As part of the
investigation, on September 14, 2012, Gronczewski determined that both child
2
Detective Camm is also a member of the New Jersey branch of the Internet
Crimes Against Children Task Force, which operates nationwide.
A-4167-17T3
3
pornography and encrypted records, called "artifacts," associated with a file-
sharing program known as ARES, were on defendant's computer from which
Camm was able to download five files containing child pornography.
Five months later, relying on detailed information about the entire
investigation and information specific to his September 2012 investigation into
defendant, Camm secured a search warrant on February 14, 2013, which was
executed on February 19, 2013 at defendant's home. There, once the police
confirmed that defendant's computer contained child pornography, they arrested
him, seized his computer, and advised defendant of his Miranda rights. During
his arrest, an altercation occurred that required the intervention of several
officers before they were able to place defendant in handcuffs.
After his arrest, the police brought defendant to headquarters for further
questioning. Prior to his interrogation there, which was videotaped, the police
again advised defendant of his Miranda rights. After being advised, defendant
did not expressly state that he was waiving his rights, but he proceeded to
respond to questioning by the officers.
In his statement to police, defendant admitted to installing the ARES
program on his computer and searching for adult pornography, but stated that if
child pornography "popped up," he would click off of it. He also did not recall
A-4167-17T3
4
seeing any reference to file sharing when he installed ARES. A full forensic
examination of his computer revealed 634 files linked to child pornography,
including twenty images and seventy-three videos.
A State Grand Jury returned an indictment charging defendant with
second-degree endangering the welfare of a child (distribution of child
pornography), N.J.S.A. 2C:24-4(b)(5)(a) (Count One); second-degree
endangering the welfare of a child (offering child pornography), N.J.S.A. 2C:24-
4(b)(5)(a) (Count Two); fourth-degree endangering the welfare of a child
(possession of child pornography), N.J.S.A. 2C:24-4(b)(5)(b) (Count Three);
and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a) (Count Four).
Subsequent to his indictment, defendant filed a motion to suppress the
evidence seized from his residence. After considering the parties' written
submissions and oral arguments, the judge denied the motion for the reasons
stated in his October 27, 2016 written decision.
On July 20, 2017, defendant pled guilty to the third count of the
indictment, charging fourth-degree endangering the welfare of a child, without
a sentencing recommendation from the prosecutor. Defendant also waived his
right to a jury trial and elected to proceed with a bench trial on the remaining
charges.
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Prior to trial, defendant filed a motion to suppress his statement to the
police. On November 14, 2017, Judge Deitch held a non-evidentiary hearing
before issuing a written decision denying defendant's motion.
Thereafter, the judge presided over defendant's trial and on March 9, 2018
issued his written decision acquitting defendant of the indictment's first two
counts that charged second-degree endangering, but convicting defendant of the
fourth count, third-degree resisting arrest. The judge sentenced defendant on
counts three and four to two concurrent three-year periods of probation, which
included requirements for sex offender specific counseling. This appeal
followed.
II.
We begin our review by addressing defendant's argument that Judge
Deitch should have granted his motion to suppress because the search warrant
was stale, since it was based upon information gathered in September 2012,
rather than when the search warrant was obtained, in February 2013. We find
no merit to this contention.
Although we normally grant deference to the findings of fact made by a
trial judge in connection with a motion to suppress, State v. Elders, 192 N.J.
224, 243-44 (2007), there was no evidentiary hearing in this case. Instead, both
A-4167-17T3
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counsel and the judge relied on the contents of Detective Camm's affidavit.
Under these circumstances, we undertake a de novo review of the adequacy of
probable cause supporting the search warrant, State v. Handy, 206 N.J. 39, 44-
45 (2011), recognizing defendant bore the burden of challenging the search and
proving a lack of probable cause, State v. Boone, 232 N.J. 417, 427 (2017). Our
review of this purely legal issues is plenary. Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995); State v. Goodman, 415 N.J.
Super. 210, 225 (App. Div. 2010).
To have prevailed on his motion, defendant had the burden of overcoming
the presumption of validity extended to a search conducted with a warrant; to
do that, he was required to "prove 'that there was no probable cause supporting
the issuance of the warrant.'" State v. Jones, 179 N.J. 377, 388 (2004) (quoting
State v. Valencia, 93 N.J. 126, 133 (1983)). In considering whether defendant
met his burden, we, like the trial judge, have to give "substantial deference" to
the discretionary determination made by the issuing judge. Ibid. (quoting State
v. Sullivan, 169 N.J. 204, 211 (2001)). Even if the judge found the supporting
information "marginal," he would have to resolve the doubt by sustaining the
search. State v. Kasabucki, 52 N.J. 110, 116 (1968) (citing United States v.
Ventresca, 380 U.S. 102, 109 (1965)).
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Thus, the question was whether the judge issuing the warrant was
presented "with facts sufficient to permit the inference of the existence of
probable cause" necessary to issue a warrant. State v. Novembrino, 105 N.J. 95,
128 (1987). The issuing judge was required "to make a practical, common-sense
decision whether, given all the circumstances set forth in the affidavit before
him . . . there [was] a fair probability that contraband or evidence of a crime
[would] be found in" the place or places to be searched. State v. Smith, 155 N.J.
83, 93 (1998) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). The judge
had to "consider the totality of the circumstances, and . . . deal with
probabilities." Schneider v. Simonini, 163 N.J. 336, 361 (2000) (citing Gates,
462 U.S. at 230-31, 238).
Defendant's claim of "staleness" bears on whether the totality of the
information in the affidavit permitted the judge to find "a fair probability that
contraband or evidence of a crime [would] be found" if defendant's premises
were searched during the time permitted in the warrant. Smith, 155 N.J. at 93
(quoting Gates, 462 U.S. at 238). In short, staleness is a question of whether the
probable cause still exists when the warrant is issued and at the time of the
search. See State v. Blaurock, 143 N.J. Super. 476, 479 (App. Div. 1976); see
also Sgro v. United States, 287 U.S. 206, 210-12 (1932).
A-4167-17T3
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"The question of the staleness of probable cause depends more on the
nature of the unlawful activity alleged in the affidavit than the dates and times
specified therein." Blaurock, 143 N.J. Super. at 479 (quoting United States v.
Harris, 482 F.2d 1115, 1119 (3d Cir. 1973)); see also United States v. Nilsen,
482 F. Supp. 1335, 1339 (D.N.J. 1980) ("The timeliness of probable cause
cannot be assessed in a factual vacuum. Rather, timeliness and its converse,
staleness, must be measured by the [n]ature and regularity of the allegedly
unlawful activity.").
Thus,
[w]here the affidavit recites a mere isolated violation it
would not be unreasonable to imply that probable cause
dwindles rather quickly with the passage of time.
However, where the affidavit properly recites facts
indicating activity of a protracted and continuous
nature, a course of conduct, the passage of time
becomes less significant.
[Blaurock, 143 N.J. Super. at 479 (quoting United
States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972)).]
In cases dealing with the maintenance and sharing of child pornography,
a time lapse is less significant. As our Supreme Court has explained,
"pedophiles, preferential child molesters, and child pornography collectors
maintain their materials for significant periods of time." State v. Evers, 175 N.J.
A-4167-17T3
9
355, 384 (2003) (quoting United States v. Lamb, 945 F. Supp. 441, 460
(N.D.N.Y. 1996)).
Applying these guiding principles, we conclude that Judge Deitch
properly considered the affidavit supporting the search warrant here and
correctly concluded that the passage of five months from the officers' detection
of child pornography on defendant's computer to the date of the warrant being
issued did not diminish the probable cause found by the warrant judge that
defendant had committed a crime.
As Judge Deitch found, the five-month period between the September 14,
2012 investigation and the application for the warrant was justified and did not
"affect the vitality of probable cause under these circumstances." He stated that,
"while the initial investigation of . . . [d]efendant was one day, the scope of the
investigation and the number of targets suggest that [s]tate [d]etectives had to
monitor activity on a continuous basis." Quoting Evers, the judge opined that
"[t]he observation that images of child pornography are likely to be hoarded by
persons interested in those materials in the privacy of their homes is supported
by common sense and the cases." Id. at 383 (quoting Lamb, 945 F. Supp. at
460).
A-4167-17T3
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The judge's findings were supported by Detective Camm's affidavit filed
in support of the warrant. As Detective Camm explained in the affidavit, during
their ongoing investigation the police searched the ARES network for file names
containing keywords commonly associated with child pornography, downloaded
the files, and confirmed that the images contained child pornography. Next, the
police determined the location of the computer. He also stated, "child
pornographers typically retain their materials (pictures, films, correspondence,
photographs, and computer graphic image files) for many years," and they
"rarely dispose of sexually explicit images of minors because the images are
treated as prized possessions."
Based on our de novo review of the totality of the circumstances, and "the
nature of the unlawful activity," we agree that the five-month time period
aligned with a "common sense" view that defendant would still have the
incriminating evidence saved on his computer when the search warrant was
executed. Blaurock, 143 N.J. Super. at 479.
III.
We turn our attention to defendant's argument that Judge Deitch
improperly denied his motion to suppress the statement that he gave at police
headquarters after his arrest. The judge denied the motion after conducting a
A-4167-17T3
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hearing, with the consent of the parties, based on the video tape and their written
submissions, before concluding that defendant knowingly and voluntarily
waived his Miranda rights.
The parties' submissions established it was undisputed that the police
advised defendant of his Miranda rights on two occasions, but never expressly
asked defendant whether he wanted to waive his rights. The parties' dispute
therefore focused on whether, despite that omission, defendant waived his
rights.
According to the transcript and the videotape of the interrogation, two
police sergeants interviewed defendant. Prior to asking defendant questions,
one of the officers confirmed with him that at the time of his arrest, his Miranda
rights were read to him, and then the officer again read defendant his rights.
Defendant confirmed that he understood what was read to him. Defendant also
signed the back of the Miranda card used by the officer to confirm what was
read to him.
After asking defendant some preliminary background questions, including
about his ownership of the subject computer, the officer interrupted his
questioning and stated the following: "[T]he questions I'm about to ask you if
you want to talk to me you can, if you don't that's fine. But I just want to let
A-4167-17T3
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you know. Would you like to continue talking to me about this? Okay. That's
a yes?" Defendant replied "yes" and the questioning continued. At its
conclusion, defendant confirmed that he provided his "statement free and
voluntary with no threats, promises, or anything being made."
On November 14, 2017, Judge Deitch issued his order and decision
denying defendant's motion. In his written decision, the judge found that the
officers' questioning of defendant was a custodial interrogation subject to
Miranda. Citing Miranda, 384 U.S. at 444, and State v. Bey (II), 112 N.J. 123,
134 (1988), the judge observed that "[a]n accused may waive his Miranda rights
if the waiver is made voluntarily, knowingly, and intelligently." Relying on
State v. Miller, 76 N.J. 392, 402 (1978), Judge Deitch stated that in determining
whether an individual waived their rights, a court had to consider "the totality
of the circumstances." Quoting from Miller, the judge identified the factors to
be considered, including a "suspect's age, education and intelligence, advice as
to constitutional rights . . . [and a] suspect's previous encounters with the law."
Relying on State v. Nyhammer, 197 N.J. 383 (2009), which addressed
facts similar to those in this case, Judge Deitch rejected defendant's contention
that "an express waiver must be obtained" by police before questioning a
defendant. The judge then applied the "Miller factors" to defendant, and stated
A-4167-17T3
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that "it [was] clear" defendant waived his rights based upon the following
findings:
Defendant is a mature individual over [eighteen]
years of age. He appears well educated and intelligent.
By way of background, he is a former police and
corrections officer. He was the Fire Captain for the
[local] Fire Department.
The circumstances of the interrogation do not
provide any indicia of duress, coercion or
misunderstanding on the part of [d]efendant. The entire
statement was less than one hour in length.
After [d]efendant was informed of his rights, his
understanding of his rights was confirmed and he
willingly answered the questions posed to him. While
there is no requirement of an express, oral waiver, one
was given by [d]efendant at the initiation of questioning
[when he responded "yes" to the officer asking him if
he wanted to continue talking to the officer].
....
The totality of [these] circumstances, as
considered under the test of Miller, establish, beyond a
reasonable doubt, that [d]efendant was aware of his
constitutional rights and knowingly and voluntarily
waived those rights.
"Generally, on appellate review, a trial [judge]'s factual findings in
support of granting or denying a motion to suppress must be upheld when 'those
findings are supported by sufficient credible evidence in the record.'" State v.
A.M., 237 N.J. 384, 395 (2019) (quoting State v. S.S., 229 N.J. 360, 374 (2017));
A-4167-17T3
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see also State v. Gamble, 218 N.J. 412, 424 (2014). Accordingly, "[a] trial
[judge]'s findings should be disturbed only if they are so clearly mistaken 'that
the interests of justice demand intervention and correction.'" Elders, 192 N.J. at
244 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). This standard also
applies to "factual findings based on a video recording or documentary
evidence" to ensure that trial judges remain the fact-finder. S.S., 229 N.J. at
381. However, we owe no deference to "conclusions of law made by lower
courts in suppression decisions," which are reviewed de novo. Boone, 232 N.J.
at 426.
We conclude that Judge Deitch correctly analyzed defendant's contentions
under the appropriate standards. We therefore affirm the denial of defendant's
motion to suppress his statement substantially for the reasons stated in the
judge's comprehensive written decision. We add only the following comments.
A "waiver need not take a designated legal form or be expressed in
designated legal terminology." State v. Yough, 49 N.J. 587, 596 (1967).
"[W]hen 'determining the validity of a Miranda waiver,' trial courts must decide
'whether the suspect understood that he did not have to speak, the consequences
of speaking, and that he had the right to counsel before doing so i f he wished.'"
A.M., 237 N.J. at 397 (quoting Nyhammer, 197 N.J. at 402). A written waiver,
A-4167-17T3
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or any "explicit statement," is not required for defendant to knowingly waive his
Miranda rights. Ibid. (quoting State v. Hartley, 103 N.J. 252, 313 (1986) (Stein,
J., dissenting)); see also State v. Faucette, 439 N.J. Super. 241, 262 (App. Div.
2015). "[F]ailure to sign a form of waiver does not preclude a finding of waiver,
nor does it make further questioning a violation of [a] defendant's constitutional
rights." State v. Warmbrun, 277 N.J. Super. 51, 63 (App. Div. 1994) (first
alteration in original) (quoting United States v. Filiberto, 712 F. Supp. 482, 487
(E.D. Pa. 1989)). "Any clear manifestation of a desire to waive is sufficient."
State v. Kremens, 52 N.J. 303, 311 (1968). "[A] knowing, intelligent, and
voluntary waiver is determined by the totality of the circumstances surrounding
the custodial interrogation based on the fact-based assessments of the trial
court." A.M., 237 N.J. at 398.
Here, "the record before [us] is 'devoid' of any implication that defendant
'was confused or did not fully appreciate his rights,' nor was he 'coerced,
intimidated, or tricked' by police into giving a statement." Id. at 399 (quoting
State v. Mejia, 141 N.J. 475, 503 (1995)). Judge Deitch properly considered the
totality of the circumstances and came to the correct conclusion. We have no
reason to disturb his decision.
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IV.
Last, we consider defendant's challenge to his conviction for having
committed the third-degree offense of resisting arrest. Although defendant
couches his argument in terms of the weight of the evidence being against the
verdict, an argument that applies to jury trials, we review it under the correct
standard of whether there was sufficient credible evidence in the record to
support the judge's decision after a bench trial. See State ex rel. R.V., 280 N.J.
Super. 118, 120-21 (App. Div. 1995).
The offense that the indictment charged defendant with committing is
defined by N.J.S.A. 2C:29-2(a)(3)(a), which states in pertinent part, the
following:
(1) Except as provided in paragraph (3), a person is
guilty of a disorderly persons offense if he purposely
prevents or attempts to prevent a law enforcement
officer from effecting an arrest. . . . (3) An offense
under paragraph (1) . . . of subsection a. is a crime of
the third degree if the person:
(a) Uses or threatens to use physical force or violence
against the law enforcement officer or another. . . .
Under subsection (3)(a), "[t]he use or threatened use of physical force or
violence . . . does not include any requirement that a defendant 'create a
substantial risk of causing physical injury.'" State v. Brannon, 178 N.J. 500,
A-4167-17T3
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506-07 (2004). The definition of physical force merely requires "dynamic
power showing great strength, power, intensity, fury, [and] destructiveness." Id.
at 510 (alteration in original) (quoting Webster's Third New Int'l Dictionary 887
(1981)). "[E]ven minimal force or violence can be 'physical,'" id. at 507, as
contemplated by the statute in order to prevent "the transformation of arrests
into melees and tragedy," id. at 509. "For compelling public safety reasons . . .
resisting arrest . . . statutes and interpretive case law require that a defendant
submit to [even] an illegal detention and that he take his challenge to court."
State v. Crawley, 187 N.J. 440, 455 (2006).
At trial, Trooper Joshua Graeber, a member of the unit who executed the
search warrant, and Sergeant Christopher Fowler, one of the arresting officers,
testified for the State about the circumstances of defendant's arrest. Defendant's
wife testified to a different version of those events on behalf of defendant.
The officers testified that upon arrival at defendant's home, they knocked
and announced, but there was no answer. After they then entered the house,
Graeber saw defendant coming down the stairs carrying a gun and allegedly
calling out, "get the fuck out of my house." Graeber identified himself and
instructed defendant to drop his gun. Defendant repeated, "get out of my house,"
but then complied and put down his gun. According to Fowler, when they tried
A-4167-17T3
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to handcuff defendant, he became "agitated," flailed his arms, and fell into a
"protective shield." Fowler repeatedly told defendant that he was under arrest,
but defendant would not comply and became combative. At that point, Fowler
and another trooper took defendant to the ground. Defendant allegedly pulled
his arms under his body and rotated his hip in an attempt to stand up. After a
brief struggle, he surrendered and was placed in handcuffs.
According to Fowler, defendant's wife was in a second-floor bedroom, and
by the time she was brought downstairs, the struggle with defendant had already
abated. Graeber claimed that he never saw defendant's wife in the upstairs
hallway.
According to defendant's wife, she was downstairs when she heard a loud,
slow banging on the door. She "froze" and yelled "who's there?" She then ran
upstairs and woke defendant, telling him that she believed someone was
breaking into the house. Defendant allegedly told her to get his gun and to call
9-1-1. She saw defendant leave the bedroom, so she "threw the phone down"
and followed him into the hallway. She stated that defendant only said "get out
of my house," and that when he was told to put his gun down, he "did so
immediately in a very controlled and deliberate fashion." She said that
defendant was fully compliant and did not waive his arms around. She claimed
A-4167-17T3
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that once she reached the bottom of the stairs, she observed a "pile" of bodies
and that the police were on top of defendant.
In his credibility findings, the judge found both of the arresting officers
to be credible and accepted their testimony over that of defendant's wife. He
concluded that defendant's conduct frustrated the troopers' attempts to place him
under arrest by using "physical force . . . in order to prevent the officers from
effecting his arrest." He described the force as "waving his arms; moving his
arms so as to frustrate the administration of handcuffs and rolling his body about
so as to frustrate the administration of handcuffs." The judge concluded that
"[t]he State has proved guilt beyond a reasonable doubt with regard to" the
resisting charge.
Defendant states that, "it is difficult, if not impossible, to see how waiving
of arms or rolling of the body is either force or physical violence 'against'
anyone, let alone a law enforcement officer." He further argues that, "[t]here
was absolutely no testimony regarding punching or kicking by . . . defendant, or
any other physical violence or force 'against' the [t]rooper." Without such
evidence, defendant's conviction should be reversed. We disagree.
We conclude that contrary to defendant's contentions on appeal, Judge
Deitch's findings were supported by the credible testimony of the two officers.
A-4167-17T3
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The testimony established defendant's use of force, as contemplated by the
statute, and was directed toward the police officers in his attempt to prevent his
arrest. Here, again, we have no cause to disturb the judge's verdict.
Affirmed.
Sunday, July 19, 2020
Defendant waived Miranda STATE v. FRANK A. FIORELLI,
Thursday, April 30, 2020
April 27, 2020 Order NJ Principles and Protocols for Virtual Court Operations During the COVID-19 Coronavirus Pandemic- (1) Methods of Conducting Remote Court Events; (2) Access to the Public Record; and (3) Posting of Events Guidance
April 27, 2020 Order
NJ Principles and Protocols for Virtual Court Operations During the COVID-19 Coronavirus Pandemic- (1) Methods of Conducting Remote Court Events; (2) Access to the Public Record; and (3) Posting of Events Guidance
April 27, 2020
By Order dated April 20, 2020, the Supreme Court reinforced our commitment to continuing the operations ofthe courts during the COVID-19 Coronavirus pandemic. This directive implements the Court's Orderand establishes guiding principles for when and how remote court events will be conducted, includingwhich events will by default be livestreamed and which will require individualized permission for real-time participation or viewing. Consistent with our policyof transparency and public access, we will continue to provide access to video recordings, audio recordings, and written transcripts upon request.
Online at https://njcourts.gov/notices/2020/n200427b.pdf
Guiding Principles for Sustaining Court Functions During the COVID-19 Crisis
The protocols outlined in this directive, including the recommendations for each division of the Superior Court (Civil, Criminal, Family, General Equity, Probate, Special Civil, Municipal) reflect our ongoing efforts to balance the rights and responsibilities involved in continuing court operations in a virtual rather than in-personformat. These principles are as follows:
• As announced in prior Orders and reiterated in the April 20 Order, during this public health emergency we are proceedingwith remote video and phone options instead of in- person appearances.
Directive #12-20
Directive # 12-20 April 27, 2020 Page 2
•We are prioritizing emergent and time-sensitive matters while continuing to support routine functions as well.
•We are modifying operations to support continuity of services with careful adjustments.
o In all matters where the participants consent, a remote option (video or phone as
available and appropriate) will be used.
o The following matters will be conducted remotely using video and/or phone options only with the consent of all parties: (1) sentencing hearings in Criminal, Family, and Municipal matters; (2) juvenile delinquency adjudications; (3) evidentiary hearings and bench trials in Criminal matters; (4) evidentiary hearings and trials in Municipal matters that involve a reasonable likelihood of a jail sentence or loss or suspension of license; (5) termination of parental rights trials; and (6) hearings for an adjudication of incapacity and appointment of a permanent guardian. In the absence of consent of all parties in these categories of matters, judges will adjourn the matter and reschedule it for date in the future when in- person appearances are again possible.
o Other matters will proceed remotely with or without consent. We will use appropriate remote video or phone options, which will be selected taking into consideration available resources, the type of event, and the participants.
o Judges will continue with routine hearings, arguments, and conferences to the greatest extent possible absent a compelling reason to delay.
o Interpreting services must be provided for remote court events as required by the Judiciary Language Access Plan (Directive #1-17).
• We are maintaining our Judiciary’s commitment to transparency while avoiding potential inadvertent disclosures of confidential information and accommodating the finite nature of our resources.
o Because the ability of the Judiciary to livestream remotely conducted court events is limited by finite available resources, Civil, Family, General Equity, Probate, Special Civil Part, and Municipal matters will not be livestreamed, absent a showing of good cause in a particular matter, with the judge to make that determination.
While the Judiciary can livestream events, such resources are limited. Proceedings that do not need to be broadcast live by default should not be livestreamed in order to ensure real-time public access for other matters.
Certain categories of proceedings should not be livestreamed because of risks in a virtual setting that may not exist in the same way or to the same degree in an in-person forum, for example, the risk of inadvertent
Directive # 12-20 April 27, 2020 Page 3
disclosure of confidential information in a civil commitment hearing or of information about the location of a party in a hearing on domestic violence or for other protective orders.
o Interested persons, including members of the public and the media, may request real-time access to observe events that are not livestreamed but are not proscribed from public access. Such access will be permitted, subject to resource limitations, as determined by the court.
Information and directions for requesting real-time access to events that are not livestreamed will be readily available to the public, including by posting on the Judiciary’s public webpage.
Requests to observe court events that are not livestreamed will be submitted to the judge handling the event, either by email or by phone. Requests will be granted on the condition that the court event must not be recorded or broadcast absent specific written permission from the Assignment Judge or designee, consistent with the Supreme Court Guidelines on Media Access and Electronic Devices in the Courts (Directive #11-20).
The Request for Audio or Video Records of Remote Court Proceedings During COVID-19 Crisis form (attached) should be used to request records of court events that are not closed.
Transcripts of court events may be requested according to existing Judiciary policies and procedures.
o For all events that are or may be livestreamed, judges have discretion not to live broadcast, including based on resource limitations; technical difficulties; preferences expressed by the parties, attorneys, witnesses, victims, or other interested persons; risk of disclosure of information that is confidential; or for other reasons including but not limited to public safety concerns. Real-time public access to events still must be enabled consistent with the above provisions.
Events Guidance for Trial Courts – Technological Options and Public Access
Based on the above principles, we have created and will continue to refine lists for the trial divisions of the Superior Court (Civil, Criminal, Family) and Municipal Courts showing: (1) typical events that occur in that division; (2) what technology should be used for each type of event; and (3) the nature of the public record. The Events Guidance lists are posted on the Judiciary’s public webpage in the Attorneys section and the Self-Help Resources section.
The Events Guidance lists are subject to refinement based on the evolving public health crisis and the Judiciary’s potential access to additional technology options. Consult the Judiciary’s public webpage to review the most current events guidance documents.
Directive # 12-20 April 27, 2020 Page 4
Technology Available to the Courts
As indicated in the posted Events Guidance lists, we currently are using four technologies to conduct court functions remotely: Zoom, Scopia, Microsoft Teams, and phone. Zoom or Teams are encouraged and supported by the Judiciary. Municipal Courts may only utilize other video options with approval of the Assignment Judge and consistent with Judiciary information security requirements.
Zoom enables parties, witnesses, and attorneys with access to the internet to participate in video court proceedings and generally is appropriate for livestreamed events including criminal hearings. Scopia rather than Zoom, is used to conduct certain court events when a necessary party is incarcerated. For non-livestreamed events – including closed proceedings – Microsoft Teams generally is used for video conferencing. If video options are unnecessary given the nature of the event, or unavailable due to resource restrictions or limited technology of a participant, court matters also may be conducted by phone. The Judiciary is continuing to explore additional options for video and phone conferencing.
Thank you for your dedication to continuing the operations of our courts during this unprecedented emergency.
cc: Chief Justice Stuart Rabner Attorney General Gurbir S. Grewal Public Defender Joseph E. Krakora Civil Division Judges
Criminal Division Judges
Family Division Judges
Municipal Court Judges
Steven D. Boonville, Chief of Staff
AOC Directors and Assistant Directors
Clerks of Courts
Trial Court Administrators
Special Assistants to the Administrative Director Civil Division Managers
Criminal Division Managers Family Division Managers Municipal Division
Tuesday, March 24, 2020
New Jersey Intoxication Defense to criminal charges
New Jersey Intoxication Defense to criminal charges
New Jersey Intoxication defense is a defense to crimes requiring either “purposeful” or “knowing” mental states.
The state has the burden of disproving this defense beyond a reasonable doubt.
Self-induced intoxication is not a defense, unless it negates an element of the offense.
Self-induced intoxication is not a defense to offenses, which only require proof of a culpability - responsibility - of either negligence, recklessness, or recklessness manifesting extreme human indifference to human life.
Hence, evidence of intoxication is admissible as a defense to murder to disprove that a defendant acted purposely or knowingly but not as a defense to aggravated manslaughter, nor manslaughter to show that he was unaware of a risk of which he should have been aware had he been sober.
Intoxication should not be charged as a defense unless there is reliable evidence that the defendant ingested drugs or alcohol and there was an incapacitation of judgment due to such substances.
Some of the factors which are important in determining whether the intoxication may have sufficient grounds to be raised as a defense is the quantity consumed, period of time involved, actor’s conduct perceived by others, any odor of alcohol or other intoxicating substance, the results of any test to determine blood alcohol content and the actor’s ability to recall significant events.
The jury must determine whether the intoxication prevented the defendant from acting knowingly or purposely.
Intoxication, which is not self, induced is an affirmative defense, which the defendant has the burden of proving by clear and convincing evidence.
If a defendant voluntarily ingests a large amount of illegal intoxicants or legal intoxicants, he cannot assert the defense that he unexpectedly reacted violently to those drugs due to an unknown underlying pathological condition.
The NJ Supreme examined the intoxication defense in State v. Baum(A-107-13) (073056)
Argued November 10, 2015 Decided February 8, 2016
SOLOMON, J., writing for a unanimous Court.
In this appeal arising from a prosecution for aggravated manslaughter and death by auto, the Court considers the trial court s jury instructions, and whether the instruction on mental disease or defect effectively negated defendant s diminished capacity defense by blending the law on self-induced intoxication and mental disease or defect.
While driving from his residence to his mother s home on the night of April 20, 2006, defendant Eugene Baum struck and killed two teenage girls who were walking in a bike lane of a major thoroughfare in Kinnelon. The responding officers found two beverage containers in defendant s car, one of which contained a liquid that was 7.7 percent ethyl alcohol (15 proof). Defendant could not maintain his balance, his speech was slurred, and he smelled strongly of alcohol. He told the police that he thought he had hit a deer, but was not sure.
At the time of the incident, defendant s blood alcohol level was determined to be between .327 and .377, four times the legal limit. Defendant had taken a prescribed anti-depressant the night before, and Librium that morning to control his symptoms of alcohol withdrawal. Although he knew that Librium would intensify his intoxication, defendant stated that he consumed more than two alcoholic beverages, but did not know how much he actually consumed, before driving to his mother s home. Defendant stated that he drank because he is an alcoholic, and has struggled with alcoholism for approximately seven years.
Defendant argued at trial that he lacked the mental capacity to act recklessly because of his intoxication, which he claimed was involuntary due to his mental diseases or defects of alcoholism and depression. Defendant presented expert testimony confirming his chronic alcoholism, and concluding that the Librium in his system severely impaired his ability to think or reason and that his drinking was automatic behavior rather than the product of conscious thought. The State s expert testified that alcohol consumption is a conscious, goal-directed behavior. At the charge conference, defense counsel argued that it would be improper for the court to characterize defendant s intoxication as self-induced because the net effect of that statement would be to negate diminished capacity. Counsel requested that the court separately and distinctly outline for the jury the concepts of self-induced intoxication and diminished capacity. The trial judge stated that he would give the self-induced intoxication charge following the mental disease or defect instruction, and defense counsel did not object.
The jury found defendant guilty of two counts of first-degree aggravated manslaughter and two counts of second-degree death by auto. Defendant was sentenced to two consecutive twenty-year prison terms subject to eighty-five percent parole ineligibility. The Appellate Division affirmed defendant s conviction, but remanded for resentencing based on a reevaluation of the aggravating factors relied on by the sentencing court. The panel found that the court s instruction regarding mental disease or defect properly incorporated the exculpatory significance of defendant s expert testimony on the relationship between defendant s intoxication and mental disease. This Court granted limited certification. 220 N.J. 37 (2014).
HELD: The jury instructions, taken as a whole, are neither ambiguous nor misleading because they did not blend, and explicitly distinguished, the concepts of mental disease or defect and self-induced intoxication, in charges that reflected an accurate statement of the law. The sequence of instructions given by the court, addressing the diminished capacity defense followed by the self-induced intoxication instruction, did not negate the diminished capacity defense.
1. Appropriate and proper charges are essential for a fair trial. The trial court must give a comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find. Erroneous instructions on material points are presumed to possess the capacity to unfairly prejudice the defendant. Because defendant objected to the proposed diminished capacity instruction, the Court applies a harmless error standard. The Court must therefore determine whether the charge as a whole sets forth accurately and fairly the controlling principles of law, or whether it is misleading, and, if so, whether this error was clearly capable of producing an unjust result. (pp. 12-14)
2. The Criminal Code allows evidence of a mental disease or defect to negate an essential mental element of the crime, and is therefore relevant to the State s burden in proving the offenses charged. A diminished capacity defense requires evidence demonstrating: a) a mental disease or defect that interferes with cognitive ability sufficient to prevent or interfere with the formation of the requisite intent or mens rea; and b) that the claimed deficiency did affect defendant s cognitive capacity to form the requisite mental state. Whether a condition constitutes a mental disease or defect is a question for determination by the jury after the court finds that the evidence of the condition in question is relevant and accepted in the psychiatric community so as to be reliable for use in litigation. (pp. 14-16)
3. Evidence of intoxication may be used to disprove that a defendant acted purposely or knowingly. However, voluntary or self-induced intoxication, defined in N.J.S.A. 2C:2-8(e)(2), is immaterial to recklessness as an element of an offense. (pp. 16-17)
4. Defendant s state of mind was at issue in light of the requirement that the State show recklessness on the charge of aggravated manslaughter under N.J.S.A. 2C:11-4(a)(1), and knowing and voluntary conduct under the death by auto charge. Defendant contended that he could not have had the requisite mental state because he was involuntarily intoxicated due to the mental diseases or defects of alcoholism and depression. Defendant asserted that his intoxication should have been considered as evidence of his mental diseases or defects to establish a diminished capacity defense. The State argued that defendant s intoxication and driving on the shoulder of the road was evidence of defendant s recklessness in causing the victims deaths. (pp. 18-19)
5. The Court finds no error in the jury charge. The trial court s instruction on self-induced intoxication mirrored the definition in N.J.S.A. 2C:2-8(e)(2), which includes the language regarding a knowing introduction of intoxicants that defendant sought. The trial court further stated that defendant had offered evidence that his intoxication was not self-induced and that his alleged use of the intoxicants was not voluntary; as a result, the court also provided the jury with the definition of a voluntary act. The court s diminished capacity charge was consistent with the Model Jury Charge. The trial court s caveat regarding self-induced intoxication, included in the diminished capacity defense charge, did not improperly blend the law of self-induced intoxication with that of mental disease or defect. These instructions, and the twice-stated distinction between the statutory definition of self-induced intoxication and defendant s denial of self-induced intoxication, were proper to allow the jury to determine the issues. (pp. 19-24)
6. The Court also rejects defendant s claim that giving the self-induced intoxication instruction immediately after the mental disease or defect instruction effectively negated his diminished capacity defense. By carefully constructing the intoxication charge to accommodate defendant s requests, the trial judge properly conveyed the concept that if defendant s intoxication was due to a mental disease or defect that deprived him of the ability to knowingly introduce intoxicants into his body, this will negate a necessary element of the offenses. In light of the content of the charge as a whole, the sequence of instructions was not clearly capable of producing an unjust result. (pp. 24-26)
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN and PATTERSON join in JUSTICE SOLOMON S opinion. JUSTICE FERNANDEZ-VINA and JUDGE CUFF (temporarily assigned) did not participate.
SUPREME COURT OF NEW JERSEY
A- 107 September Term 2013
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